Citation Nr: 9930092
Decision Date: 10/21/99 Archive Date: 10/29/99
DOCKET NO. 94-35 444 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased evaluation for chronic
asthmatic bronchitis, with chronic obstructive pulmonary
disease (COPD), currently evaluated as 60 percent disabling.
2. Entitlement to an increased evaluation for a right
shoulder disorder, currently evaluated as 20 percent
disabling.
3. Entitlement to an increased evaluation for a left
shoulder disorder, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1964 to February
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1992 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Detroit, Michigan, which denied the veteran's claims
for increased evaluations for chronic asthmatic bronchitis,
then evaluated as zero percent disabling; a left shoulder
disorder, evaluated as 20 percent disabling; and a right
shoulder disorder, then evaluated as zero percent disabling.
In his September 1992 Notice of Disagreement, the veteran
asserted that he suffered from COPD and that this disorder
was related to his service-connected chronic asthmatic
bronchitis. In the October 1992 Statement of the Case, the
RO included the issue of service connection for COPD among
the issues on appeal. The veteran addressed this issue again
in his August 1993 Substantive Appeal, and the RO listed this
issue, along with the veteran's increased ratings claims, in
an August 1996 Supplemental Statement of the Case. In a
February 1997 rating decision, the RO expanded the grant of
service connection for chronic asthmatic bronchitis to
include COPD and assigned a 60 percent evaluation.
In a November 1997 letter, the RO informed the veteran that,
in light of a July 1997 decision by the United States Court
of Appeals for the Federal Circuit, the appeal on the issue
of service connection for asthmatic bronchitis would be
removed from appellate control. See Holland v. Gober, 124
F.3d 226 (Fed. Cir. 1997) (decision published without
opinion); see also Grantham v. Brown, 114 F.3d 1156, 1158-59
(Fed. Cir. 1997). In this regard, however, the Board would
point out that veteran's claim is for an increased evaluation
(rather than service connection) for chronic asthmatic
bronchitis, with COPD. The 60 percent evaluation assigned
for this disorder is less than the maximum available under
the applicable diagnostic criteria, and there is no clear
indication from the record that the veteran has withdrawn his
claim for an increased evaluation for this disorder.
Therefore, this claim remains viable on appeal and is
addressed in this decision. See AB v. Brown, 6 Vet. App. 35,
38 (1993).
Moreover, in the February 1997 rating decision, the RO
granted a 20 percent evaluation for a right shoulder
disorder. Again, the 20 percent evaluation is less than the
maximum available under the applicable diagnostic criteria,
and this claim also remains viable on appeal. Id.
In April 1998, the Board remanded this case to the RO for
further development, to include a search for records and a
new VA examination. This development has been accomplished,
and the case has since been returned to the Board.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained by the RO.
2. The veteran's chronic asthmatic bronchitis, with COPD,
has been shown to be no more than severe in degree, with lung
function studies from December 1996 showing combined moderate
air flow obstruction and restrictive lung disease.
3. The veteran's right shoulder disorder is manifested by
forward flexion limited to no more 90 degrees, with some
evidence of pain upon range of motion testing but with no
swelling or deformity.
4. The veteran's left shoulder disorder is manifested by
forward flexion limited to 60 to 65 degrees, with evidence of
pain on motion.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 60 percent
for chronic asthmatic bronchitis, with COPD, have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.1, 4.7, 4.97, Diagnostic Codes 6602, 6604 (1999); 38
C.F.R. § 4.97, Diagnostic Code 6604 (1996).
2. The criteria for an evaluation in excess of 20 percent
for a right shoulder disorder have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45,
4.71a, Diagnostic Code 5202 (1999).
3. The criteria for a 30 percent evaluation for a left
shoulder disorder have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a,
Diagnostic Codes 5201, 5202 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Applicable laws and regulations
As a preliminary matter, the Board finds that the veteran's
claims for increased evaluations are plausible and capable of
substantiation and are therefore well grounded within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a
service-connected condition has become more severe is well
grounded when the claimant asserts that a higher rating is
justified due to an increase in severity. See Caffrey v.
Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2
Vet. App. 629, 631-32 (1992). The Board is also satisfied
that all relevant facts have been properly developed and that
no further assistance to the veteran is required in order to
comply with the VA's duty to assist him in developing the
facts pertinent to his claims under 38 U.S.C.A. § 5107(a)
(West 1991).
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities.
Ratings are based on the average impairment of earning
capacity. Individual disabilities are assigned separate
diagnostic codes. See 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. § 4.1 (1999). Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994). Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7 (1999).
II. Chronic asthmatic bronchitis, with COPD
The RO granted service connection for chronic asthmatic
bronchitis in a February 1975 rating decision in light of in-
service evidence of respiratory treatment. A noncompensable
(zero percent) evaluation was assigned, effective from
October 1974. In a February 1997 rating decision, the RO
expanded this grant of service connection to include COPD and
increased the evaluation to 60 percent, effective September
1991, in light of the results of a December 1996 VA
respiratory examination. The 60 percent evaluation has since
remained in effect and is at issue in this case.
In a January 1992 letter, Frankie Roman, M.D., noted that the
veteran had a history of severe COPD and asthma. Dr. Roman
stated that the veteran's respiratory status was "getting
gradually worse" and was manifested by a severely decreased
exercise tolerance and dyspnea on minimal exertion. The
veteran was noted to not be a candidate for pulmonary
rehabilitation due to his back problems and numbness of the
left leg.
The report of the veteran's March 1992 VA examination
contains a diagnosis of mild COPD. Chest x-rays revealed no
active infiltration of the lung, but there was blunting of
the costophrenic angle that was noted to possibly be due to
old pleural thickening. Pulmonary function testing (PFT)
results included forced expiratory volume in one second (FEV-
1) of 37 percent of predicted value and the ratio of FEV-1 to
forced vital capacity (FEV-1/FVC) of 75 percent. The doctor
who conducted the PFT noted moderately reduced FVC, severely
reduced FEV-1, and normal FEV-1/FVC. An assessment of
probable restrictive impairment was rendered.
During his December 1996 VA respiratory examination, the
veteran complained of a cough with sputum, wheezing, and
shortness of breath with exertion. The examination revealed
bilateral rales and rhonchi on auscultation of the lungs.
Vesicular breath sounds with prolonged expiration were heard
bilaterally. No left parasternal heave was appreciated.
Lung function studies were noted to show combined moderate
air flow obstruction and restrictive lung disease; specific
results included FEV-1 of 52 percent of predicted value, FEV-
1/FVC of 71 percent, and diffusion capacity of the lung by
the single breath method (DLCO(SB)) of 75 percent of
predicted value. The impression was asthma and chronic
asthmatic bronchitis, with fixed airway obstruction and COPD,
and the examiner opined that it was "very likely" that the
COPD was incurred as secondary to the asthma "since a
subgroup of patients with asthma develop fixed airway
obstruction."
During the December 1996 VA respiratory examination, the
veteran reported respiratory treatment at Providence Hospital
in Southfield, Michigan. In May 1998, following the Board's
April 1998 remand, the RO sent a letter to the veteran
informing him that his authorization was necessary prior to
obtaining any records from Providence Hospital. To date, the
veteran has not responded to this letter, and the RO has
therefore been unable to obtain the noted records. See Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, in
light of the veteran's failure to respond to the VA's efforts
to assist him with the factual development of his claim, no
further effort will be expended to assist him in this regard.
The RO has evaluated the veteran's chronic asthmatic
bronchitis, with COPD, at the 60 percent rate under 38 C.F.R.
§ 4.97, Diagnostic Code 6602 (1999), which pertains to
bronchial asthma. By regulatory amendment effective October
7, 1996, during the pendency of this appeal, substantive
changes were made to the schedular criteria for evaluating
respiratory disorders. Generally, when the laws or
regulations change while a case is pending, the version most
favorable to the claimant applies, absent congressional
intent to the contrary. Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991). However, in Rhodan v. West, 12 Vet. App.
55 (1998), the United States Court of Appeals for Veterans
Claims (Court) noted that, where compensation is awarded or
increased "'pursuant to any Act or administrative issue, the
effective date of such an award or increase ... shall not be
earlier than the effective date of the Act or administrative
issue.'" Id. at 57. See 38 U.S.C.A. § 5110(g) (West 1991).
As such, the Court reasoned that this rule prevents the
application of a later, liberalizing law to a claim prior to
the effective date of the liberalizing law.
Under the prior criteria of Diagnostic Code 6602, in effect
through October 6, 1996 and for application during the entire
pendency of this appeal under Karnas, a 60 percent evaluation
was warranted for severe bronchial asthma with frequent
attacks (one or more weekly); marked dyspnea on exertion
between attacks, with only temporary relief by medication;
and more than light manual labor precluded. A 100 percent
evaluation was warranted for pronounced bronchial asthma with
very frequent attacks, with severe dyspnea on slight exertion
between attacks and with marked loss of weight or other
evidence of severe impairment of health.
Under the current criteria of Diagnostic Code 6602, in effect
only on and after October 7, 1996, a 60 percent evaluation is
warranted in cases of FEV-1 of 40 to 55 percent of predicted
value, FEV-1/FVC of 40 to 55 percent, at least monthly visits
to a physician for required care of exacerbations, or
intermittent (at least three per year) courses of systemic
(oral or parenteral) corticosteroids. A 100 percent
evaluation is warranted for FEV-1 of less than 40 percent of
predicted value;
FEV-1/FVC of less than 40 percent; more than one attack per
week, with episodes of respiratory failure; or the
requirement of daily use of systemic (oral or parenteral)
high dose corticosteroids or immuno-suppressive medications.
In this case, the evidence of record does not suggest
bronchial asthma that is "pronounced" in severity, as would
warrant a 100 percent evaluation under the prior criteria of
Diagnostic Code 6602. The Board observes that the March 1992
VA examination revealed FEV-1 of 37 percent of predicted
value. However, the veteran's FEV-1/FVC was 75 percent, and
the report of the December 1996 VA respiratory examination
indicates that PFT showed combined moderate air flow
obstruction and restrictive lung disease.
Also, the December 1996 PFT revealed FEV-1 of 52 percent of
predicted value and FEV-1/FVC of 71 percent. Moreover, there
is no evidence suggesting at least monthly visits to a
physician for required care of exacerbations, or intermittent
(at least three per year) courses of systemic (oral or
parenteral) corticosteroids. As such, the revised criteria
for a 100 percent evaluation under Diagnostic Code 6602 also
have not been met.
As the veteran's service-connected respiratory disability
encompasses COPD, the Board has also considered whether a 100
percent evaluation might be warranted for this disability
under 38 C.F.R. § 4.97, Diagnostic Code 6604 (1999) for the
period on and after October 7, 1996; the Board observes that
no corresponding diagnostic code section was included under
the prior provisions of 38 C.F.R. § 4.97 (1996). However,
the Board finds no evidence of FEV-1 of less than 40 percent
of predicted value, FEV-1/FVC of less than 40 percent,
DLCO(SB) of less than 40 percent of predicted value, maximum
exercise capacity of less than 15 ml/kg/min oxygen
consumption (with cardiac or respiratory limitation), cor
pulmonale (right heart failure), right ventricular
hypertrophy, pulmonary hypertension, episodes of acute
respiratory failure, or the requirement of outpatient oxygen
therapy.
In short, the Board has considered all applicable diagnostic
criteria but finds no basis for an evaluation in excess of 60
percent for the veteran's chronic asthmatic bronchitis, with
COPD. Therefore, the preponderance of the evidence is
against his claim for that benefit.
III. Left and right shoulder disorders
In a February 1975 rating decision, the RO granted service
connection for a right shoulder disorder in light of in-
service evidence of right shoulder surgery and assigned a
noncompensable (zero percent) evaluation, effective from
October 1974. In a February 1997 rating decision, the RO
increased this evaluation to 20 percent in light of the
results of a December 1996 VA orthopedic examination. The 20
percent evaluation for a right shoulder disorder has since
remained in effect and is at issue in this case.
Also, in the February 1975 rating decision, the RO granted
service connection for a left shoulder disorder in light of
in-service evidence of left shoulder surgery and assigned a
20 percent evaluation, effective from October 1974. In a
January 1978 rating decision, the RO reduced this evaluation
to the noncompensable rate, effective April 1978. However,
in an April 1979 rating decision, the RO restored the 20
percent evaluation in full and also assigned a temporary 100
percent evaluation under 38 C.F.R. § 4.29 for the period from
November 12, 1978 until February 1, 1979. The 20 percent
evaluation has since remained in effect and is at issue in
this case.
During his December 1996 VA orthopedic examination, the
veteran reported a painful left shoulder, with a feeling of
loose movement and occasional sharp pain in both shoulders.
The examination revealed no swelling or deformity in either
shoulder. The shoulder contour was noted to be normal, and
the apprehension test was positive on the left side. There
was no muscle atrophy. Range of motion testing of the right
shoulder revealed abduction to 175 degrees, forward flexion
to 90 degrees, external rotation to 65 degrees, and internal
rotation to 70 degrees. Range of motion testing of the left
shoulder revealed abduction to 165 degrees, forward flexion
to 60 degrees, external rotation to 45 degrees, and internal
rotation to 60 degrees. Grip strength was satisfactory on
the left side but weak on the right side. Deep tendon
reflexes were exaggerated on the right side. X-rays of both
shoulders showed status post surgery, with staples inserted
into the bones. The diagnosis was status post surgery of
right and left shoulders for recurrent dislocation.
In August 1998, the veteran underwent a further VA orthopedic
examination. The examination of the right shoulder revealed
a normal contour, with no swelling or deformity. Muscle tone
was poor to moderate, and power was moderate against
resistance. Range of motion testing of the right shoulder
revealed active abduction to 160 degrees, passive abduction
to 170 degrees, forward flexion to 160 degrees, external
rotation to 70 degrees, and internal rotation to 80 degrees.
There was no evidence of spasticity, and the veteran's
reflexes were normal. Grip strength was good, and there was
no sensory loss. Apprehension test was negative, but sulcus
sign was present. The veteran was unable to sustain the
active adductive position of the arm for more than a few
seconds without complaining of weakness and pain. On the
left side, the shoulder girdle muscle showed moderate
atrophy. There was no deformity or swelling, but there was
tenderness anteriorly. Range of motion testing of the left
shoulder revealed active abduction to 90 degrees, without any
sustaining power; passive abduction to 100 degrees, with
pain; forward flexion to 65 degrees actively and to 70
degrees passively, with pain; external rotation to 65
degrees; and internal rotation to 75 degrees. Grip strength
was moderate. Reflexes were present, and there was no
spasticity. X-rays of both shoulders revealed status post
surgery, with staples in the proximal humerus. The examiner
noted that there was no evidence of any "union" and no
clinical evidence of fibrous union. The x-rays were also
noted to show that there was considerable subluxation of both
scapulohumeral joints. The diagnosis was recurrent
subluxation and instability of both shoulders, left more than
right.
The RO has evaluated both of the veteran's shoulder
disabilities at the 20 percent rate under 38 C.F.R. § 4.71a,
Diagnostic Code 5202 (1999). The veteran's service medical
records show that he is right-handed; as such, the right
shoulder disorder is for evaluation as a major joint, while
the left shoulder disorder is for evaluation as a minor
joint. See 38 C.F.R. § 4.69 (1999).
Under the criteria for a major joint under Diagnostic Code
5202, a 20 percent evaluation is warranted for malunion of
the humerus, with moderate deformity; or recurrent
dislocation of the humerus at the scapulohumeral joint, with
infrequent episodes and guarding of movement only at the
shoulder level. A 30 percent evaluation is warranted for
malunion of the humerus, with marked deformity; or recurrent
dislocation of the humerus at the scapulohumeral joint, with
frequent episodes and guarding of all arm movements. A 50
percent evaluation is warranted for fibrous union of the
humerus.
Under the criteria for a minor joint under Diagnostic Code
5202, a 20 percent evaluation is warranted for malunion of
the humerus, with either moderate or marked deformity; or
recurrent dislocation of the humerus at the scapulohumeral
joint, with either frequent episodes and guarding of all arm
movements or with infrequent episodes and guarding of
movement only at the shoulder level. A 40 percent evaluation
is warranted for fibrous union of the humerus.
With regard to the veteran's right shoulder disorder, the
Board observes that there is evidence of forward flexion
limited to 90 degrees, with no swelling or deformity. There
is no evidence of recurrent dislocation of the humerus at the
scapulohumeral joint, with frequent episodes and guarding of
all arm movements; or malunion of the humerus, with marked
deformity. As such, the criteria for a 30 percent evaluation
under Diagnostic Code 5202 have not been met. While the
Board observes that pain was noted with range of motion
testing of the right shoulder, the Board also notes that the
RO's March 1999 Supplemental Statement of the Case clearly
indicates that the RO considered the criteria of 38 C.F.R.
§§ 4.40 and 4.45 (1999) in assigning a 20 percent evaluation.
See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996).
Additionally, there is no evidence of favorable ankylosis of
scapulohumeral articulation, with abduction to 60 degrees and
the ability to reach the mouth and head (the criteria for a
30 percent evaluation under Diagnostic Code 5200); or
limitation of motion of the arm midway between side and
shoulder level (the criteria for a 30 percent evaluation
under Diagnostic Code 5201).
With regard to the veteran's left shoulder disorder, the
Board observes that a higher evaluation, of 40 percent, is
not warranted under Diagnostic Code 5202 in the absence of
fibrous union of the humerus, which was noted to not be
present in the report of the August 1998 VA examination.
However, this examination revealed limitation of active
forward flexion to 65 degrees, and forward flexion was noted
to be limited to 60 degrees in the report of the December
1996 VA examination. As such, the Board finds that this
disability is more appropriately rated under Diagnostic Code
5201, which concerns limitation of motion of the arm. Under
this section, a 20 percent evaluation is warranted for
limitation of motion of the arm at the shoulder level, or
midway between the side and shoulder level. A higher
evaluation, of 30 percent, is warranted for limitation of
motion of the arm to 25 degrees from the side, which has not
been shown on examination. However, as noted above, the
August 1998 VA examination revealed pain upon range of motion
testing, and the Board observes that the assigned 20 percent
evaluation for the left shoulder disorder has been in effect
since 1979, well before the issuance of the DeLuca decision
concerning the assignment of a higher evaluation on the basis
of pain with motion. See 38 C.F.R. §§ 4.40, 4.45 (1999). In
view of this, the Board finds that a 30 percent evaluation
for the left shoulder disorder is warranted on the basis of
pain with motion. However, as there is no evidence of
unfavorable ankylosis of scapulohumeral articulation, with
abduction limited to 25 degrees from the side (the criteria
for a 40 percent evaluation under Diagnostic Code 5200),
there is no basis for an evaluation in excess of 30 percent
for this disability.
Overall, the Board has reviewed the veteran's claims file and
finds that the preponderance of the evidence is against his
claim for an evaluation in excess of 20 percent for his right
shoulder disorder. However, the evidence supports a 30
percent evaluation, and no more, for his left shoulder
disorder.
IV. Application of 38 C.F.R. § 3.321(b)(1)
The Board has based its decision in this case upon the
applicable provisions of the VA's Schedule for Rating
Disabilities. The veteran has submitted no evidence showing
that the service-connected disabilities at issue in this case
have markedly interfered with his employment status beyond
that interference contemplated by the assigned evaluations,
and there is also no indication that these disorders have
necessitated frequent periods of hospitalization during the
pendency of this appeal. As such, the Board is not required
to remand this matter to the RO for the procedural actions
outlined in 38 C.F.R. § 3.321(b)(1) (1999). See Bagwell v.
Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet.
App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
ORDER
Entitlement to an evaluation in excess of 60 percent for
chronic asthmatic bronchitis, with COPD, is denied.
Entitlement to an evaluation in excess of 20 percent for the
veteran's right shoulder disorder is denied.
Entitlement to a 30 percent evaluation for the veteran's left
shoulder disorder is granted, subject to the laws and
regulations governing the payment of monetary benefits.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals